Opinion
No. X 06-CV-01-0167912 S
December 18, 2003
MEMORANDUM OF DECISION
The plaintiffs Chad Prigge and Sara Prigge have brought this action against Kristine Ragalia, who at the time of the incidents in question was the Commissioner of the Department of Children and Families ("DCF"), and Kelly McVey, Gloria Tardiff, Sherry Rautenberg, and Beverly Bosse, four employees of DCF, in their individual capacities. The Prigges assert that the defendants acted tortiously and in violation of federal law and the Connecticut and United States constitutions in their treatment of the plaintiffs concerning the temporary and final placement of the orphaned child, Joshua S.
This action was initially filed against the defendants in their official and individual capacities. Our Supreme Court reversed the decision of the trial court, Sheldon, J., denying the defendants' motion to dismiss the claims against them in their official capacities on the grounds of sovereign immunity and directed the trial court to render judgment dismissing the plaintiffs' claims seeking monetary damages against the defendants in their official capacities. Prigge v. Ragaglia, 265 Conn. 338 (2003).
The plaintiffs' revised complaint contains the following counts: willful, wanton and reckless misconduct; violations of 42 U.S.C. § 1983; violations of 42 U.S.C. § 1985(3); violations of 42 U.S.C. § 1986; violations of Article 1 and Article 7 of the Connecticut constitution; and the intentional infliction of emotional distress. The defendants have moved to strike each of these counts for failure to state a cognizable claim and on the grounds of qualified immunity.
The law governing the court's consideration of a motion to strike is well established. "The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." (Citations and internal quotation marks omitted.) Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214 (1992). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Suffield Devel. Assoc. L.P. v. National Loan Inv. 64 Conn. App. 192, 197 (2001). "The role of the trial court is to examine the complaint, construed in favor of the plaintiffs, to determine whether the pleading party has stated a legally sufficient cause of action." Dodd v. Middlesex Mutual Assurance Company, 242 Conn. 375, 378 (1997).
I Lack of a Cognizable Federal Claim
The plaintiffs have alleged in their complaint that the defendants' conduct violated 42 U.S.C. § 1983, 1985(3) and 1986. Section 1983 allows an individual to bring suit against persons who, under color of state law, have caused him to be "deprived of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. Section 1985(3) provides a right of action to redress, inter alia, injury resulting from a conspiracy to deprive "any person or class of persons of the equal protection of the laws," 42 U.S.C. § 1985(3), and § 1986 permits an action against a person who had the "power to prevent or aid in preventing the commission of" a wrong mentioned in section 1985, but who neglected or refused so to do, 42 U.S.C. § 1986. None of these statutes are the source of substantive rights. In order to establish liability under these federal statutes, the plaintiffs must look to other sources for substantive rights, such as the constitution of the United States. See e.g. Great American Federal Savings Loan Assn. v. Novotny, 442 U.S. 366, 372 (1979) (§ 1985(3) provides no substantive rights itself), and Dwares v. City of New York, 985 F.2d 94, 98, (2d Cir. 1993) (liability under §§ 1983 and 1986 require violation of other substantive rights). In this case, the plaintiffs claim that they have been deprived of their rights under the establishment clause and free exercise clause of the first amendment and under the equal protection clause of the fourteenth amendment to the United States constitution.
At oral argument on the defendants' motion to strike, the plaintiffs withdrew their claims of violations of procedural and substantive due process under the due process clause of the United States Constitution.
The defendants assert in their motion to strike that the plaintiffs' complaint fails to allege a cognizable federal constitutional claim. The defendants contend that no violation of the plaintiffs' rights to equal protection has been properly pled because the factual allegations of the complaint do not establish selective treatment based on impermissible considerations. The defendants' contention that the plaintiffs' revised complaint fails to state a constitutional violation rests on a fundamental misreading of the plaintiffs' complaint.
The defendants fail to address in their motion to strike the plaintiffs' claim that the defendants' actions violated the plaintiffs' first amendment rights to the free exercise of their religion.
The free exercise clause of the first amendment to the United States constitution as applied to the states through the fourteenth amendment categorically prohibits government from penalizing individuals solely on the basis of their religious beliefs. McDaniel v. Paty, 435 U.S. 618, 626 (1978). See also Torcaso v. Watkins, 367 U.S. 488 (1961), and Employment Division v. Smith, 485 U.S. 660, 674 (1988) (government may not "penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities"). Although religious discrimination is rarely challenged under the equal protection clause due to the protections afforded religious beliefs under the first amendment, State v. Hodge, 248 Conn. 207, 244 n. 43 (1999), governmental action penalizing individuals because of their religious beliefs constitutes a deprivation of rights under the equal protection clause of the fourteenth amendment to the United States constitution. Id., 245. See also Board of Ed. of Kiryas Joel v. Grumet, 512 U.S. 687, 715 (1994) (O'Connor, J., concurring) ("In my view, the Religion Clauses — the Free Exercise Clause, the Establishment Clause, the Religious Test Clause, Art. VI, cl. 3, and the Equal Protection Clause as applied to religion — all speak with one voice on this point: absent the most unusual circumstances, one's religion ought not affect one's legal rights or duties or benefits"), and Fowler v. Rhode Island, 345 U.S. 67, 70 (1953) (Frankfurter, J., concurring).
The plaintiffs have alleged in their revised complaint that the defendants through their actions surrounding the temporary and final placement of Joshua S. penalized the plaintiffs for their religious beliefs. Their revised complaint alleges the following facts. The plaintiffs had been named Joshua's guardians in his parents' will and desired to take custody of Joshua after the death of his parents. The plaintiffs were members of the Truth Baptist Church in South Windsor. Numerous individuals told the defendants during their initial investigation after the death of the parents of Joshua S. that the plaintiffs' church was "a cult" and that its members did not take medications. The defendants accepted these statements as true and relied on them in making its placement decisions concerning Joshua S. The defendants refused to interview the plaintiffs or conduct a study of their home due to the plaintiffs' religious beliefs. The defendants refused to place Joshua S. with the plaintiffs after the death of his parents because of their religion. Based on these allegations, it is abundantly clear that the plaintiffs' revised complaint contains sufficient facts to state a claim of religious discrimination in violation of the first amendment and the equal protection clause of the fourteenth amendment to the United States constitution.
The defendants also maintain that the plaintiffs have failed to state a claim under 42 U.S.C. § 1985(3) and 1986 because they have failed to allege sufficient particularized facts supporting their claim of conspiracy. I do not agree.
To state a cause of action under § 1985(3), the plaintiff must allege a conspiracy and an overt act in furtherance of the conspiracy, Carpenters v. Scott, 463 U.S. 825, 828 (1983). Furthermore, liability under § 1986 is dependent on the validity of a claim under § 1985(3), Dwares v. City of New York, 985 F.2d 94, 98, 101 (2d Cir. 1993). Thus, the plaintiffs here must sufficiently allege that the defendants engaged in a conspiracy to state valid claims under § 1985(3) and § 1986.
In order to state a claim of conspiracy, the complaint must contain more than mere conclusory allegations. Id., 99. The plaintiff must provide details of time and place and the alleged effect of the conspiracy. Id., 100. A review of the revised complaint indicates that the plaintiffs have alleged specific facts to support their allegation that the defendants conspired to deprive them of their constitutional rights. The complaint identifies specific acts of the individual defendants that it claims were part of the conspiracy. The defendant Bosse knew as of June 16, 1999 of the existence of the wills naming the plaintiffs testamentary guardians of Joshua and intentionally ignored the wills due to the plaintiffs' religious beliefs. Bosse gathered statements from others describing the plaintiffs' church as "a cult" and the defendants relied on those statements in making decisions regarding Joshua's placement. The defendant McVey knew through a telephone call with Chad Prigge on June 21, 1999 that the plaintiffs desired custody of Joshua. McVey intentionally destroyed her contemporaneous notes of this call after receiving a subpoena duces tecum from the plaintiffs and created another document misstating the content of the conversation. Based on the results of Bosse's investigation of the Prigges, McVey placed Joshua with the Valleras family who had never met Joshua and were not members of the plaintiffs' church. Another family, the Felicianos, who had strong contacts with Joshua and his family were denied custody of Joshua by the defendants due to their membership in the plaintiffs' church. The defendant Tardif restricted the plaintiffs' visitation with Joshua. The plaintiffs claim that the defendants took these actions in concert and on the basis of the plaintiffs' religious beliefs. There is nothing conclusory, vague or general about the plaintiffs' allegations that would warrant striking their claim of a conspiracy.
II Lack of a Cognizable State Constitutional Claim
The plaintiffs assert in their revised complaint a cause of action for damages directly under the state constitution for the defendants' actions in allegedly violating article first, § 3 and § 20, and article seventh by discriminating against them solely on the basis of their religious beliefs. The plaintiffs contend that, under the principles established by our Supreme Court in Binette v. Sabo, 244 Conn. 23 (1998), this court should recognize a direct cause of action for violations of our state constitution's protections of religious liberty. The defendants maintain that the same Binette principles mandate the denial of such a cause of action. For the following reasons, I agree with the defendants.
Article first, § 3 provides: "The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state; provided, that the right hereby declared and established, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state."
Article first, § 20 provides: "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin."
Article seventh provides: "It being the right of all men to worship the Supreme Being, the Great Creator and Preserver of the Universe, and to render that worship in a mode consistent with the dictates of their consciences, no person shall by law be compelled to join or support, nor be classed or associated with, any congregation, church or religious association. No preference shall be given by law to any religious society or denomination in the state. Each shall have and enjoy the same and equal powers, rights and privileges, and may support and maintain the ministers or teachers of its society or denomination, and may build and repair houses for public worship."
In Binette v. Sabo, our Supreme Court recognized a common-law cause of action under article first, §§ 7 and 9, of our state constitution for the policy reasons articulated by the United States Supreme Court in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the United States Supreme Court concluded that a "violation of [the fourth amendment's prohibition against unreasonable searches and seizures] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct." Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. 389. Our Supreme Court recognized a similar cause of action for damages under our state constitution. Binette v. Sabo, supra, 244 Conn. 23.
Five years earlier, our Supreme Court had refused to recognize a state constitutional cause of action for violations of the rights to due process, guaranteed by article first, § 8 of the Connecticut Constitution. Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 330 (1993). The court concluded that "[A]s a general matter, we should not construe our state constitution to provide a basis for the recognition of a private damages action for injuries for which the legislature has provided a reasonably adequate statutory remedy. This conclusion accords with the constitutional principle of separation of powers and its requirement for judicial deference to legislative resolution of conflicting considerations of public policy." Id., 339.
The Supreme Court in Binette ruled that whether to recognize a cause of action for alleged violations of our state constitutional provisions must be determined on a case-by-case basis and be based upon a multifactor analysis. Binette v. Sabo, supra, 244 Conn. 48. "The factors to be considered include: the nature of the constitutional provision at issue; the nature of the purported unconstitutional conduct; the nature of the harm; separation of powers considerations and the other factors articulated in Bivens and its progeny; the concerns expressed in Kelley Property Development, Inc.; and any other pertinent factors brought to light by future litigation." Id. Thus, the court in Binette preserved the precept announced in Kelley Property Development, Inc. that the implication of a state constitutional cause of action should not violate separation of powers principles by impinging on legislatively created remedies. In fact, a key factor supporting the recognition of a constitutional cause of action in Binette was that the state legislature had not crafted a meaningful alternative remedy for the constitutional violation at issue there. Id., 43.
That is not the case here. The General Assembly has enacted a comprehensive remedy for the religious discrimination alleged by the plaintiffs. General Statutes § 46a-58 makes it an unlawful discriminatory practice to subject any person to the deprivation of any rights secured by the Constitution or laws of this state or of the United States on account of religion. General Statutes §§ 46a-51 et seq. establishes an elaborate administrative procedure through the Commission of Human Rights and Opportunities (CHRO) for the vindication of those rights. This procedure includes the right to file a complaint, General Statutes § 46a-82(a), the opportunity for a hearing before an impartial hearing officer, General Statutes § 46a-84, and the award of damages and attorneys fees, General Statutes § 46a-86(c). The plaintiffs have taken advantage of this statutory scheme in that they have filed a complaint with CHRO and that complaint is now pending in a separate action before this court.
Our legislature has demonstrated, through its statutory enactments, its sensitivity to the importance of protecting the right to religious liberty. It is not appropriate for this court to imply a constitutional remedy where none is needed and where one may upset the delicate remedial balance fashioned by the legislature. Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 339-40. See also Smith v. Hartford, Superior Court, complex litigation docket at Tolland, Docket No. X07-CV98-0070792S (Jul. 14, 2000) (Bishop, J.), and Broadnax v. City of New Haven, judicial district of New Haven, Docket No. 412193 (May 16, 2000) (Levin, J.). Accordingly, the defendants' motion to strike the fifth and eleventh counts of the plaintiffs' revised complaint is granted.
III Qualified Immunity
The defendants contend that the plaintiffs' federal constitutional claims must be stricken on the grounds of qualified immunity. Specifically, the defendants assert that they are entitled to qualified immunity because the plaintiffs have not pled a violation of a clearly established constitutional right. I do not agree.
The defendants also assert that they are entitled to qualified immunity vis-a-vis the plaintiffs' state constitutional claims. I need not address this issue as I have determined that the plaintiffs' state constitutional claims should be stricken as they are not properly the subject of a direct cause of action for damages. See part II of this opinion.
"It is well settled that `government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Procunier v. Navarette, 434 U.S. 555, 565 [ 98 S.Ct. 855, 55 L.Ed.2d 24] (1978); Wood v. Strickland, [ 420 U.S. 308, 322, 95 S.Ct. 992,43 L.Ed.2d 214 (1975)].' Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)." Dimartino v. Richens, 263 Conn. 639, 675 (2003). See also Hope v. Pelzer, 536 U.S. 730, 739 (2002). Qualified immunity operates to ensure that before they are subject to suit, government officials are on notice that their conduct is unlawful. Id. "For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent." (Citations and internal quotation marks omitted.) Id.
Normally, "the threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 736 (2002). In this case, I have already determined that the allegations of the plaintiffs' revised complaint are sufficient to state a claim of religious discrimination in violation of the first amendment and the equal protection clause of the fourteenth amendment to the United States constitution. See part I of this opinion.
The actions of the defendants of which the plaintiffs complain occurred in 1999. At that time it had unquestionably been clearly established that actions of state officials penalizing individuals for their religious beliefs transgressed the free exercise clause of the first amendment, McDaniel v. Paty, 435 U.S. 618, 626 (1978), Torcaso v. Watkins, 367 U.S. 488 (1961, and Fowler v. Rhode Island, 345 U.S. 67(1953), and the equal protection clause of the fourteenth amendment to the United States constitution, Fowler v. Rhode Island, supra, 345 U.S. 70 (1953) (Frankfurter, J., concurring). "We have time and again held that the government generally may not treat people differently based on the God or gods they worship, or do not worship." Board of Ed. of Kiryas Joel v. Grumet, 512 U.S. 687, 714 (1994). Assuming that the plaintiffs' prove the allegations of their complaint, it should have been apparent to the defendants that it was a violation of the plaintiffs' constitutional right to religious liberty to refuse to consider them or to reject them as custodians for Joshua S. because of their religious beliefs.
IV Intentional Misconduct
The defendants have also moved to strike those counts of the plaintiffs' complaint which assert a claim of willful, wanton and intentional misconduct and those counts which assert a claim of intentional infliction of emotional distress. The defendants contend that the allegations contained in these counts fail to rise to the level of misconduct embodied in each of those causes of action. The defendants maintain that the allegations fall short of willful, wanton and intentional misconduct because they constitute mere negligence and they fall short of the extreme and outrageous misconduct required for a claim of intentional infliction of emotional distress. Again, the defendants' arguments ignore the fundamental thrust of the plaintiffs' complaint.
When considering a motion to strike, the court is bound to construe the facts in the complaint most favorably to the plaintiff, Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214 (1992), and all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted, Suffield Devel. Assoc. L.P. v. National Loan Inv., 64 Conn. App. 192, 197 (2001).
The plaintiffs' revised complaint alleges that the defendants, in their treatment of the plaintiffs with respect to the placement of Joshua S., intentionally discriminated against the plaintiffs due to the plaintiffs' religious beliefs. The plaintiffs claim that the defendants refused to interview them, conduct a home study or consider placing Joshua with them despite the fact that they had been named testamentary guardians of Joshua and despite their expressed desire to become Joshua's guardian because of their membership in the Truth Baptist Church. Willful misconduct includes intentional misconduct, that is, misconduct that is done purposely with knowledge. Caraher v. Sears, Roebuck Co., 124 Conn. 409, 415. See also Paternostro v. Arborio Corp., 56 Conn. App. 215, 221 (1999). The allegations of the plaintiffs' complaint that the defendants engaged in intentional religious discrimination properly comprise a claim of willful misconduct.
The tort of intentional infliction of emotional distress requires conduct that was extreme and outrageous. Petyan v. Ellis, 200 Conn. 243, 253 (1986). "In determining what conduct is extreme and outrageous `[t]he rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.' (Emphasis in original; internal quotation marks omitted.) Id., 254 n. 5, quoting W. Prosser W. Keeton, Torts (5th Ed. 1984) § 12, p. 60. `It is for the court to determine, in the first instance, whether the defendants conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so.' (Internal quotation marks omitted.) Mellaly v. Eastman Kodak Co., 42 Conn. Sup. 17, 19 n. 1, 597 A.2d 846 (1991), quoting 1 Restatement (Second), Torts § 46, comment (h), p. 77 (1965). Only if reasonable people could differ should the question be left for the jury. Mellaly v. Eastman Kodak Co., supra, 19 n. 1." Campbell v. Plymouth, 74 Conn. App. 67, 78 (2002). It would not be unreasonable for a jury to conclude that the alleged conduct of the defendants in discriminating against the plaintiffs due to their religious beliefs was extreme and outrageous.
V Injunctive Relief
Finally, the defendants have moved to strike the plaintiffs' claim for injunctive relief ordering the defendants to expunge and destroy all DCF records relating to the plaintiffs. The defendants contend that the plaintiffs' complaint fails to allege irreparable harm and equity does not support the issuance of such an injunction.
A party seeking injunctive relief has the burden of establishing irreparable harm and the lack of an adequate remedy at law. Walton v. New Hartford, 223 Conn. 155, 165 (1992). "Where an injury is of such a nature that it cannot be adequately compensated in damages, or cannot be measured by any pecuniary standard, it is irreparable. Whether damages are to be viewed by a court of equity as `irreparable' or not depends more upon the nature of the right which is injuriously affected than upon the pecuniary measure of the loss suffered." (Quotation marks and citations omitted.) New London v. Perkins, 87 Conn. 229, 235 (1913).
The plaintiffs allege in their complaint that DCF's records contain false information concerning them, including that their church is a cult, their church harbors sexual offenders, they refuse to take medications and they engage in abusive corporal punishment. The plaintiffs claim that employees of DCF have used this false information to the detriment of the plaintiffs. The plaintiffs further allege that they have suffered and will continue to suffer embarrassment and humiliation as a result of the placement of this false information in DCF's files. Based on the allegations of the complaint, I can not conclude that the plaintiffs are completely without a right to seek an injunction concerning the allegedly false information contained in DCF's records.
In light of the above, the defendants' motion to strike the fifth and eleventh counts of the plaintiffs' revised complaint which assert causes of action directly under provisions of the Connecticut constitution is hereby granted. In all other respects, the defendants' motion to strike is hereby denied.
BY THE COURT JOHN M. ALANDER, JUDGE OF THE SUPERIOR COURT.